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Wild Fish Conservancy Files Lawsuit to Force Federal Consultation on Basin Mitchell Act Hatcheries by Staff Columbia Basin Bulletin, April 1, 2016

"Those truly interested in recovery are better served by putting
their efforts into restoring the wild rivers that salmon need."

A Northwest environmental group yesterday filed a lawsuit in the U.S. District Court of Oregon in Portland against the National Marine Fisheries Service and the U.S. Department of Commerce for funding hatchery programs in the Columbia River basin under the Mitchell Act without complying with section 7 of the federal Endangered Species Act.

The advocacy group for wild fish in the basin filed a notice of intent to sue in January over alleged harmful impacts of hatchery fish on wild fish, contending that fish raised in hatcheries, despite good intents, are harmful to wild fish populations.

(CBB, January 15, 2016, "Wild Fish Advocates File Notice Against Mitchell Act Hatcheries, 60 Million Smolts Annually")

"These programs," the group said in a press release, "adversely affect five distinct population segments (subspecies) of both Chinook salmon and steelhead listed under the ESA, as well as threatened or endangered coho, chum, and sockeye salmon and bull trout, along with their critical habitat."

The filing drew the immediate ire of the Columbia River Inter-Tribal Fish Commission, which expressed "disappointment and frustration" over the filing. CRITFC represents four Columbia River treaty tribes: Yakama, Warm Springs, Umatilla and Nez Perce.

The tribes called the filing a misguided attack that disregards constitutionally protected promises made to them by the United States to replace fish runs that were damaged by the construction and operation of federal hydroelectric dams.

"Lawsuits like these are expensive distractions from the important work of salmon recovery, and they jeopardize the livelihoods of tribal and non-tribal fishing communities," said Jeremy Wolf, chairman of CRITFC. "The lawsuit is based on the flawed logic that hatcheries caused the decline of wild salmon abundance and wrongly asserts that simply closing hatcheries will increase wild salmon abundance."

That's a path the leads to fewer fish in the rivers and does virtually nothing to improve the condition of natural runs, he added. "Those truly interested in recovery are better served by putting their efforts into restoring the wild rivers that salmon need."

The premise of the Conservancy's lawsuit is that each of the Northwest's 62 hatchery programs must comply with the ESA and, because NMFS funds Mitchell Act hatcheries, an ESA consultation is required for each of the programs.

According to the Conservancy's court brief, federal agencies are required under the ESA to "insure that any action authorized, funded, or carried out by such agency. . . is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of habitat that has been designated as critical for such species."

However, to do that, a federal agency planning to fund an action, such as a hatchery, that might affect ESA-listed species or their critical habitat are required to consult with NMFS and the U.S. Fish and Wildlife Service to quantify the effects of the proposed federally-funded action, the adverse impacts on the listed species and their critical habitat, the Conservancy said.

"Such consultation concludes with NMFS' and/or FWS' issuance of a biological opinion determining whether the action is likely to jeopardize ESA-protected species or result in adverse modification of critical habitat," the group said.

The Conservancy court brief is at wildfishconservancy.org/copy_of_news/in-the-news/001.0.complaintMitchellActColumbia33116.pdf

"These programs discharge over sixty million hatchery fish into the Columbia River Basin every year, knowingly causing harm to threatened and endangered salmon, steelhead, and bull trout, "said Kurt Beardslee, executive director of Wild Fish Conservancy.

"It's ironic that NMFS is required by law to consult with themselves, yet they continue to fund programs that they themselves have identified as contributing to the decline of the very same listed fish they're charged with protecting. It's been 17 years; NMFS needs to step up, initiate consultation, and put the needed solutions in place," Beardslee continued. "We are investing millions of state and federal dollars every year on salmon recovery, and at the same time spending millions of public dollars on hatchery programs that are compromising that investment."

The Mitchell Act program, named after a pioneer Oregon fish culturist, Hugh Mitchell, now produces about 60 million smolts annually and fuels about 75 percent of the Columbia Basin's salmon and steelhead returns.

In an effort to mitigate adverse effects on fisheries in the Columbia Basin as a result of dams, logging and pollution, Congress enacted the Mitchell Act in 1938.

Since at least 1999, NMFS has failed to comply with the ESA consultation requirements for nearly all of the Mitchell Act hatchery programs, the Conservancy contends.

"Consultations prior to 1999 are outdated, as several salmon and steelhead population units in the Columbia Basin have since been listed under the ESA and considerable new scientific information regarding the adverse effects of hatchery salmon on wild, ESA-listed, salmon has become available," the group concludes. "Both new listings and new scientific information required that previous consultations be re-initiated immediately."

CRITFC said the lawsuit will instead delay NMFS' ESA consultations and that it actually seeks to halt funding for hatchery programs to restore salmon runs.

"These programs, which support tribal and non-tribal fishing, are key to the Yakama Nation's program to sustain the ancient tribal fishery on the Klickitat River and are an important tool in restoring natural runs of salmon in the Klickitat, Wenatchee, Umatilla, and Clearwater river basins," CRITFC said. Tribal hatcheries have been an important part of salmon recovery and the lawsuit could impact tribal programs on the Klickitat and Yakima rivers in Washington.

CRITFC suggests the Conservancy look at the problem of poor fish runs differently.

"Columbia Basin salmon were not decimated because of hatcheries. The Columbia Basin has hatcheries because natural fish were decimated," Wolf said. "The Fish Conservancy litigation won't do anything to help the fish, but it will certainly hurt the most vulnerable fishing community: tribal members who rely on these programs."

He added that this litigation "perpetuates the myth that all hatchery fish are bad and cannot be used in recovery."

About 80 percent of salmonids in the basin were born in hatcheries rather than in the wild, according to the court brief.

"The hatchery-bred fish harm wild fish by competing for food and rearing habitat and by preying on the wild fish. Hatchery programs also harm wild populations through genetic interactions. Salmonids reared in a hatchery environment become less fit to survive and reproduce in the wild.

"Hatchery fish released en masse return as adults to interact genetically with wild fish, thereby introgressing their domesticated genes into the wild population and reducing wild productivity," the brief said.

Because of these adverse effects, consultations are required. Both NMFS and the Department of Commerce have failed to initiate or reinitiate consultations and, so, are in violation of the ESA.

The Wild Fish Conservancy is a nonprofit organization located in Duvall, Washington. It says it is dedicated to the preservation and recovery of the Northwest's native fish species and the ecosystems upon which those species depend.